Saucer v. City of West Palm Beach

• Decision Date: 06 March 1945
• Citation: 155 Fla. 659,21 So.2d 452
• Parties: SAUCER et al. v. CITY OF WEST PALM BEACH.
• Court: Florida Supreme Court

21 So.2d 452

155 Fla. 659

SAUCER et al. v. CITY OF WEST PALM BEACH.

Florida Supreme Court

March 6, 1945

Appeal from Circuit Court, Palm Beach County; Harry N Sandler, judge.

E. B Donnell, of West Palm Beach, for appellants.

Paul W Potter, of West Palm Beach, for appellee.

BUFORD, Justice.

The appellant plaintiff below, joined by her husband, filed suit against the City of West Palm Beach, Florida, claiming the City allowed a sidewalk to be in a bad and unsafe condition, and that she stepped into a depression and fell, suffering injuries, as set forth in declaration.

To the second amended declaration the defendant City filed two pleas, one a plea of 'not guilty' and the other a plea of contributory negligence. The case was tried before a jury and resulted in a verdict for the defendant. Plaintiff's motion for a new trial was denied and plaintiff appeals.

Plaintiff assigns six errors, all of which are set forth in brief as questions involved, which we shall consider in the order presented.

First Question:

Should the Court below have instructed the jury that there was no evidence of permanent injury?

The testimony shows that there is no evidence of permanent injury. The burden of proof is on the plaintiff, and this allegation was not proven. Even if there were any proof of permanent injuries, the primary question for the jury to decide was that of negligence. By the verdict for the defendant the jury determined that the defendant was not guilty of negligence or that the plaintiff, appellant here, was guilty of contributory negligence. The court correctly charged the jury there was no evidence of permanent injuries, and no error was committed. See Blashfield's Instructions to Juries, Vol. 1, page 294; People v. Welch, 49 Cal. 174; People v. King, 27 Cal. 507, 87 Am.Dec. 95; King v. King, 155 Mo. 406, 56 S.W. 534; Reed v. Shenck, 13 N.C. 415.

It is the duty of the court to tell the jury that there is no evidence of a particular fact if there is none. Wells v. Clements, 48 N.C. 168.

Florida Statutes, 1941, F.S.A. § 54.17 provides:

'54.17 Court's charge to jury; direction of verdict

'Upon the trial of all cases at law in the several courts of this State, the judge presiding on such trial shall charge the jury only upon the law of the case; that is, upon some point or points of law arising in the trial of said cause. If, however, after all the evidence shall have been submitted on behalf of the plaintiff in any civil case, it be apparent to the judge of the circuit court, county court, or civil court of record, that no evidence has been submitted upon which the jury could lawfully find a verdict for the plaintiff in such civil case, the judge shall upon motion of the defendant direct the jury to find a verdict for the defendant; and if, after all the evidence of the parties shall have been submitted, it be apparent to the judge of the circuit court, county court or civil court of record that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct the jury to find a verdict for the opposite party.

'At trial of any civil action or proceeding at law in the courts of this state, the judge presiding shall charge the jury on the law of the case in the trial at the conclusion of the argument of counsel.'

It has been held in Florida that where there is evidence to support an issue, it should be submitted to the jury; but otherwise not. See Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 So. 516; Florala Sawmill Co. v. Smith, 55 Fla. 447, 46 So. 332; Starks v. Sawyer, 56 Fla. 596, 47 So. 513; Bass v. Ramos, 58 Fla. 161, 50 So. 945, 138 Am.St.Rep. 105; Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718; Skinner Mfg. Co. v. Douville, 61 Fla. 429, 432, 54 So. 810; Geo. E. Wood Lbr. Co. v. Gipson, 63 Fla. 316, 323, 58 So. 364; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A.1916C, 1208; King v. Cooney-Eckstein Co., 66 Fla. 246, 63 So. 659, Ann.Cas.1916C, 163; Paul v. Commercial Bank of Ocala, 69 Fla. 62, 68 So. 68.

In the case of Carraway v. Graham, 218 Ala. 453, 118 So. 807, 810, in an action against a physician for malpractice, an assignment of error was based on the refusal of the trial court to give specifically requested charges to the effect that there was no evidence of certain alleged facts. The particular charge requested was: 'The court charges the jury that there is no evidence in this case that defendant cut into either of plaintiff's kidneys.' The court said: 'There was no such evidence, and this charge might have contributed something to the jury's understanding of the issues to be decided'; but held not error.

In the case of Kenney v. Langston et al., 133 Fla. 6, 182 So. 430, the court held that the legal sufficiency of the evidence is a matter of law for the court to determine.

In the case of Stevens v. Tampa Electric Co., 81 Fla. 512, text 519, 88 So. 303, 306, this court had before it the question of directing a verdict, when it said: 'The presumptions are in favor of the ruling made by the court, and the burden is on the plaintiff in error to clearly show from the evidence that the court committed the error assigned.

'This rule does not impair the organic right to a jury trial, since if by the legal effect of the evidence the plaintiff has not proven a controverted cause of action, he has no more right to a jury trial than if he had failed to allege a cause of action in his pleadings.

'And the principle of law that indulges a presumption in favor of the ruling of the trial court on the probative force of the testimony of the witness taken before him does not violate the rights of the parties to the litigation.'

The appellant contends that there is evidence of permanent injuries in the case at bar. It may be conceded by the appellant that the court is authorized to instruct the jury that there is no evidence of permanent injuries, if there is no such evidence. Then the only question which the appellant may raise is whether there is any evidence of permanent injuries, as shown by the testimony. Appellant quotes certain parts of the testimony in his brief, which he believes constitutes evidence of permanent injuries.

Appellant has cited a definition of permanent personal injury as being 'different from future pain and suffering and relates to a condition lasting all the future life of the party injured.' Tested by the definition given by the appellant, it is apparent that there is no evidence of permanent injury in this case.

If the doctors who treated appellant do not say there is any permanent injury, the jury composed of laymen certainly could not be expected to say there was such injuries; if they did it would be reversible error.

In the case of Samulski v. Menasha Paper Co., 147 Wis. 285, 133 N.W. 142, 145, the court said:

'Verdicts must rest on probabilities, not bare possibilities. There is not capacity in any number of the former to create the later. So the person on whom the burden of proof rests to establish the right of a controversy, must produce credible evidence from which men of unbiased minds can reasonably decide in his favor. He cannot leave the right of the matter to rest in mere conjecture and expect to succeed. O'Brien v. [Chicago, St. P., M. & O.] Railway Co., 102 Wis. 628, 632, 78 N.W. 1084; Hyer v. Janesville, 101 Wis. 371, 77 N.W. 729; Clark v. Franklin [Farmers'] Mut. Fire Insurance Co., 111 Wis. 65, 68, 86 N.W. 549; Hart v. Neillsville, 141 Wis. 3, 15, 123 N.W. 125, 135 Am.St.Rep. 17; Stock v. Kern, 142 Wis. 219, 223, 125 N.W. 447.

'The doctrine of those cases condemns the grounding of a verdict upon such shadowy proof as not to establish the vital facts to a reasonable certainty. A mere choice of possible or conjectural theories will not do.'

In Gracy v. Atlantic C.L.R. Co., 53 Fla. 350, 42 So. 903, 908, the verdict was for the defendant in a damage suit, and on appeal, one of the errors assigned was based on instructions given at the request of the defendant, limiting the jury in the assessment of damages, if they found for the plaintiff, to the net market value of the property destroyed, and excluded interest. The court said, 'inasmuch as the verdict was for the defendant, it is unnecessary to discuss these assignments.' (Emphasis supplied.)

In the case at bar, the verdict being for the defendant, there is little need of discussing the question of permanent injuries. Nevertheless, the above authorities show that no error was committed.

Second and Third Questions:

Should the Court have charged the jury as follows: 'The Court charges you that it is the duty of the City of West Palm Beach to erect notices or to place light of some sort to warn travelers of the danger where there is a defect in the sidewalk that makes it dangerous for travel without such light or notice'?

Should the court have instructed the jury as follows: 'The existence of a dangerous break or defect in the sidewalk may be lawful and thereby not negligence for the city authorities to allow it to continue to exist, but the negligence consists in the failure to protect or warn travelers of the danger resulting therefrom'?

Apparently counsel for the appellant in requesting these charges, wanted the court to assume that the defect complained of was dangerous. Six charges were requested by the plaintiff, four of which were given and two refused. Two of the charges given contained the requested clause relating to the erection of warnings or notices or signal lights, which were sufficient.

In the case of Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183, 186, 7 Ann.Cas. 241, an assignment of error was was based on the refusal of the judge to give the following charge,...